877 F.

2d 294

UNITED STATES of America, Plaintiff-Appellee,

v.
Michael B. MITCHELL; Clarence M. Mitchell, III,
Defendants-Appellants.
No. 88-5529.

United States Court of Appeals,

Fourth Circuit.
Argued April 14, 1989.
Decided June 8, 1989.
Rehearing and Rehearing In Banc Denied Aug. 28, 1989.

William Moses Kunstler, New York City, John J. McDermott (O'Connor

& Hannan; Sean Connelly, Brand & Lowell, Washington, D.C., Michael
Milleman, on brief), for defendants-appellants.
Gary Patrick Jordan, First Asst. U.S. Atty., Bel Air, Md. (Breckinridge L.
Willcox, U.S. Atty., Washington D.C., Max H. Lauten, Asst. U.S. Atty.,
Baltimore, Md., on brief), for plaintiff-appellee.
Before HALL, SPROUSE, and CHAPMAN, Circuit Judges.
K.K. HALL, Circuit Judge:

Michael B. Mitchell and Clarence B. Mitchell, III ("appellants" or "the

Mitchells") appeal their convictions of corruptly endeavoring to obstruct a
congressional investigation, 18 U.S.C. Sec. 1505, and of wire fraud, 18 U.S.C.
Sec. 1343. Michael Mitchell also appeals his conviction on a separate count of
wire fraud. Finding no error as to any of the convictions, we affirm.

I.
2

This is another of the many prosecutions related to Wedtech Corporation, a

manufacturing firm located in the South Bronx, New York. Wedtech was a
rather small manufacturing firm until, in 1979, it became certified as a minority
small business under the Small Business Administration's ("SBA") 8(a)

program. Under the 8(a) program, government agencies set aside certain
contracts to be awarded to minority-owned businesses on a noncompetitive
basis. Wedtech qualified for this program because its principal shareholder and
president, John Mariotta, is Hispanic.
3

Once qualified under the program, Wedtech became extremely successful, so

much so that its stock was publicly traded on the New York Stock Exchange.
This tremendous success led to serious questions and numerous complaints
concerning Wedtech's continuing eligibility for a program intended to help
small minority businesses.

These complaints eventually reached Parren J. Mitchell, the representative from

Maryland's Seventh Congressional District. Congressman Mitchell chaired the
House Committee on Small Business, the committee with oversight authority of
the SBA's minority business program. In response to the growing controversy
surrounding Wedtech, Mitchell instigated an investigation into the situation. On
July 27, 1984, the chief investigator for the Small Business Committee handdelivered a letter from the Committee to the SBA regional offices in New York
City requesting that all of the files on Wedtech be turned over to the
Committee.

News of this investigation quickly reached Wedtech and touched off a flurry of
activity to stop it. Because nearly all of Wedtech's business was derived from
the SBA program, any loss of eligibility would have been highly detrimental.
The corporation's officers moved quickly to lobby Congressman Mitchell,
enlisting several friendly congressmen in the effort. None of these efforts
proved fruitful, however, and the investigation continued.

Richard Strum, an assistant vice-president at Wedtech, was one of the

company's officials involved in the effort to stop the investigation. Strum called
Anthony Loscalzo, one of Wedtech's marketing consultants. Loscalzo, who was
located in Illinois, had previously lived and worked in the Baltimore area and
had kept close ties with the Mitchells, who are brothers and members of a
prominent black political family in the area. Loscalzo advised Strum that the
Mitchells might be able to help Wedtech with the investigation because of their
close relationship with their uncle, Congressman Mitchell.

Strum flew to Baltimore on September 24, 1984, and arranged to meet with
Michael Mitchell the next evening. At the meeting, Strum told Michael that he
had been referred to him by Loscalzo and that Wedtech needed the committee's
investigation stopped. Michael responded that for a substantial fee he could

"get rid of the problem." Strum did not close the deal and told Michael that he
first had to contact his superiors at Wedtech. The meeting ended with the
understanding that Strum would get back to the Mitchell brothers if Wedtech
were interested.
8

After the meeting, Strum called Loscalzo. Loscalzo informed Strum that he and
Michael had a longtime fee-splitting arrangement whereby Loscalzo received
one-third of all fees from referral clients. Strum and Loscalzo agreed that they
would split this referral fee 50-50.

When Strum returned to New York on September 26, he returned to an

organization that was growing increasingly anxious. Through contacts in the
New York City SBA office, Wedtech officials had learned that on September
24, Congressman Mitchell had sent a confidential letter to SBA stating that the
Committee's review of Wedtech had led to substantive questions concerning the
company's continued participation in the minority set-aside program. The letter
further stated that the Committee wanted SBA to thoroughly investigate the
situation and listed several specific inquiries to be made.1

10

When Strum was told of the letter, he immediately made several telephone calls
to Maryland to set up a meeting with the Mitchells. Eventually, a meeting was
arranged for October 1 at the law offices of Michael Mitchell.

11

At the October 1 meeting, Wedtech was represented by Strum, Loscalzo,

executive vice-president Mario Moreno, and its president, Mariotta. After
explaining the Wedtech operation to the Mitchells, Moreno complained that the
investigation initiated by their uncle was creating a serious problem. He
indicated that if the Mitchells could solve this problem, Wedtech would be in a
position to do a lot of business with them.

12

Michael Mitchell responded that he was familiar with the investigation and that
he and his brother could stop it for a fee of $50,000. He cautioned the group
that the investigation was moving quickly and that the fee should be paid as
soon as possible because the brothers would take no action until it was
received. Michael then drafted a "retainer letter" which stated that the $50,000
fee was to retain his law firm for future legal services. Strum and Moreno both
testified that the letter was a cover-up for the real purpose of the fee.2

13

The next day, a $50,000 check was hand-delivered from Wedtech to Michael's
law offices. Bank records show that the check was cashed immediately and that
from it Loscalzo received $16,666.66, which he divided equally with Strum.

Other than Strum and Loscalzo, no one at Wedtech was aware of this "feesplitting" arrangement.
14

There is no evidence in the record that the Mitchells took any further action to
influence the investigation. In fact, there is no evidence that either Michael
Mitchell or any other member of his law firm performed any legal services on
behalf of Wedtech after he received the fee. Nonetheless, once the fee was
paid, Wedtech's officials perceived that the investigation had been thwarted.

15

Because Wedtech's officials were pleased with the Mitchells' ability to persuade
their uncle, in February, 1985, another $50,000 was paid to them to influence
the Committee to begin an investigation of one of the company's competitors.
As before, there is no evidence that either brother did anything further to
influence the Committee and the fee was split with Loscalzo and Strum.

16

In May, 1987, after an extensive federal investigation of Wedtech, the Mitchells

were named in a five-count indictment. All of the counts arise from the initial
$50,000 payment. The first two counts charged the brothers with endeavoring
to obstruct a congressional investigation and a corresponding conspiracy
charge. The third and fourth counts were for wire fraud and were based on
Strum's use of the wires in arranging the October 1, 1984, meeting. The
government alleged that this meeting set up a fraudulent scheme between the
Mitchells and Wedtech's officers to disburse corporate funds for an unlawful
purpose, i.e., obstruction of the investigation. The fifth count charged Michael
with wire fraud and was based on Strum's September 25, 1984, call to Loscalzo.
The fraudulent scheme alleged was Loscalzo's breach of his fiduciary duty to
Wedtech by referring the Mitchells' employment so that he could receive a
kickback of one-third of the fee. The government maintained that this was a
separate scheme to defraud Wedtech of corporate funds.

17

Jury selection commenced on October 21, 1987. The original venire panel was
dismissed, however, because some jurors were tainted by racist comments
made in the jurors' lounge. Jury selection from a new venire commenced on
October 26. Following voir dire, the government used seven of its ten
peremptory challenges to strike black members of the panel. The jury
eventually selected contained nine whites and three blacks, one of whom was
the foreperson.

18

Following two days of deliberations, the jury acquitted the Mitchells of count
one, conspiracy to obstruct a congressional investigation, and of the wire fraud
charged in count four. The brothers were convicted on count 2, endeavoring to

obstruct a congressional investigation, and on the wire fraud charged in count

3. Michael was also convicted on the separate wire fraud charged in count five.
After denial of their post-trial motions, Michael and Clarence were both fined
and sentenced to 30 months on each count, with the sentences to run
concurrently. This appeal followed.
II.
19

Appellants raise several arguments. Their primary contention is that they did
not "corruptly" endeavor to influence a House investigation as that phrase is
used in 18 U.S.C. Sec. 1505. They maintain that since no "illegal means" of
influence, such as bribery or extortion, was ever contemplated, their agreement
to stop the investigation solely by their ability to influence Congressman
Mitchell through their close relationship is not a corrupt endeavor. Rather, they
contend that they were like any other lobbyists with ties to a member of
Congress who attempt to use those ties to the benefit of their clients.
Alternatively, they argue that even if their actions did constitute a corrupt
endeavor, the investigation they were hired to stop was not a congressional
investigation for purposes of Sec. 1505. They maintain that absent proof that
the investigation had been formally authorized pursuant to Committee rules at
the time the corrupt endeavor occurred, it cannot be punished under the statute.

20

Appellants also contend that their wire fraud convictions are fatally flawed
because they are legally dependent on their improper convictions on the Sec.
1505 charge. They argue that if the Sec. 1505 convictions are overturned, there
can be no fraudulent scheme to disburse corporate funds for an unlawful
purpose. Alternatively, they maintain that the indictment does not allege a
scheme to defraud of property rights that is punishable by the wire fraud statute
and, that even if it did, the government failed to prove that Strum's telephone
calls were made in furtherance of that scheme. Michael Mitchell contends that
his individual wire fraud conviction is also improper because at the time the
telephone call in question was made there was no fraudulent scheme in esse for
which he can be convicted. Finally, appellants allege, inter alia,3 that their right
to the equal protection of law was violated by the prosecution's raciallydiscriminatory use of its peremptory jury strikes. We begin our analysis by
addressing appellants' arguments against their convictions for endeavoring to
obstruct a congressional investigation.

21

Section 1505 of Title 18 of the U.S.Code provides in pertinent part:

22

Whoever corruptly, ... endeavors to influence, obstruct, or impede ... the due
and proper administration of the law under which any pending proceeding is

being had before any department or agency of the United States, or the due and
proper exercise of the power of inquiry under which any inquiry or
investigation is being had by either House, or any committee of either House or
any joint committee of the Congress-23

Shall be fined not more than $5,000 or imprisoned not more than five years, or
both.

24

Appellants' argument that the use of their close relationship with their uncle to
influence the investigation cannot constitute a corrupt endeavor is untenable.
Such a narrow interpretation of Sec. 1505 runs contrary to the well-established
rule that the omnibus clauses of federal obstruction statutes should be broadly
construed. United States v. Laurins, 857 F.2d 529, 536 (9th Cir.1988) (18
U.S.C. Sec. 1505), cert. filed, 57 U.S.L.W. 3655 (March 17, 1989); United
States v. Lester, 749 F.2d 1288, 1293 (9th Cir.1984) (18 U.S.C. Sec. 1503);
United States v. Reeves, 752 F.2d 995, 998-1000 (5th Cir.), cert. denied, 474
U.S. 834, 106 S.Ct. 107, 88 L.Ed.2d 87 (1985) (26 U.S.C. Sec. 7212); United
States v. Browning, 572 F.2d 720, 725 (10th Cir.1978), cert. denied, 439 U.S.
822, 99 S.Ct. 88, 58 L.Ed.2d 114 (1978) (18 U.S.C. Sec. 1505).4 The rationale
for this rule is compelling:

25 obstruction of justice statute was drafted with an eye to "the variety of corrupt
The
methods by which the proper administration of justice may be impeded or thwarted,
a variety limited only by the imagination of the criminally inclined."
26

United States v. Griffin, 589 F.2d 200, 206-07 (5th Cir.), cert. denied, 444 U.S.
825, 100 S.Ct. 48, 62 L.Ed.2d 32 (1979) (citation omitted) (interpreting Sec.
1503). Accordingly, several courts have held that means, other than "illegal
means," when employed to obstruct justice fall within the ambit of the "corrupt
endeavor" language of federal obstruction statutes. See United States v. Partin,
552 F.2d 621, 642 n. 26 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54
L.Ed.2d 189 (1977) (bribery not prerequisite to violation of Sec. 1503); Reeves,
752 at 998-1000 (filing of improper tax liens violates 26 U.S.C. Sec. 7212);
Browning, 572 F.2d at 725 (no need for threat of violence to violate Sec. 1505).
In interpreting Sec. 1503, the Fifth Circuit has held that "any effort or any act,
however contrived," as long as it was made with the requisite intent to obstruct
or interfere, violates the statute. United States v. Cioffi, 493 F.2d 1111, 1119
(5th Cir.), cert. denied, 419 U.S. 917, 95 S.Ct. 195, 42 L.Ed.2d 155 (1974). We
find this reasoning persuasive in interpreting Sec. 1505. The proper inquiry is
whether a defendant had the requisite corrupt intent to improperly influence the
investigation, not on the means the defendant employed in bringing to bear this
influence. United States v. Cintolo, 818 F.2d 980, 991-93 (1st Cir.), cert.

denied, --- U.S. ----, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987) (interpreting Sec.
1503). Accordingly, we hold that any endeavor, including the promised
exploitation of a special relationship with the chair of the investigating
committee, when done with the requisite intent to corruptly influence a
congressional investigation, violates Sec. 1505.5 See generally United States v.
Fasolino, 586 F.2d 939, 941 (2nd Cir.1978) (endeavor to exploit special
relationship with district court judge held to violate Sec. 1503); United States v.
Baker, 611 F.2d 964 (4th Cir.1979) (advice to grand jury witnesses to take the
fifth amendment can violate Sec. 1503 if it is given with a corrupt intent);
Cintolo, 818 F.2d at 993 (otherwise lawful means can violate Sec. 1503 if done
with corrupt intent).
27

In applying these principles to the case at bar, it is clear that the circumstances
of appellants' employment--a hand-delivered $50,000 check camouflaged by a
phony retainer letter, paid on promises that appellants could "get rid of the
problem" and followed by no legitimate services rendered--coupled with their
self-professed personal access to their uncle, abundantly support the jury's
verdict that appellants intended to corruptly influence the investigation.
Likewise, we reject the argument that these convictions infringe on appellants'
first amendment right to lobby members of Congress. Clearly, legitimate
lobbying activities, even those directed towards members of Congress with
whom the lobbyist has close ties, do not violate Sec. 1505. However, the
evidence in this case more than adequately supports the jury's conclusion that
appellants were not paid for their advocacy skills, but rather were paid for their
ability to thwart the investigation solely through their ties to their uncle.6 Such
a use of influence constitutes a corrupt endeavor punishable under Sec. 1505.

28

Appellants' argument that the lack of proof of formal committee authorization

places this investigation outside the protections of Sec. 1505 also rests on an
unrealistically narrow construction of the statute. This argument is based on the
premise that for a congressional investigation to be a "due and proper exercise
of the power of inquiry" under the statute, it must first have been formally
authorized pursuant to the letter of the investigating committee's rules. We
disagree.

29

Although we have found no direct authority for determining exactly what is a

house investigation for purposes of Sec. 1505, several courts have addressed
the issue of what is an administrative proceeding under the statute. These
decisions have uniformly held that this term should be construed broadly to
effectuate the statute's purposes. See generally, Annotation, Construction and
Application of 18 U.S.C. Sec. 1505 Making it a Federal Offense to Obstruct
Proceedings before Federal Departments or Agencies or Congressional

Committees, 8 ALR Fed. 893 (1971). Indicative of these decisions is the Eighth
Circuit's holding in Rice v. United States, 356 F.2d 709 (8th Cir.1966). There,
the court was confronted by a claim that a Sec. 1505 prosecution could not lie
because the obstructive activities occurred before a formal complaint had been
filed with the Labor Board. The court rejected this narrow interpretation,
refusing to read the statute in a way that would produce an "absurd result or one
which defeats the purpose for which the Act was passed." Id. at 712 (citation
omitted). Instead, the court reasoned that:
30

"Proceeding" is a comprehensive term meaning the action of proceeding ...

including all steps and stages in such an action from its inception to its
conclusion.

31

In our view, it would be absurd to hold that Congress meant to proscribe

interference with the administrative process after a Labor Board proceeding had
reached a certain formal stage and let go unpunished individuals who obstruct
earlier preliminary proceedings.

32

Id. at 712; see also United States v. Fruchtman, 421 F.2d 1019 (6th Cir.), cert.
denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed.2d 86 (1970) ("proceeding" given
"broad scope"). We find this reasoning persuasive in regard to congressional
investigations as well and reject appellants' formal authorization argument. The
question of whether a given congressional investigation is a "due and proper
exercise of the power of inquiry" for purposes of Sec. 1505 can not be answered
by a myopic focus on formality. Rather, it is properly answered by a careful
examination of all the surrounding circumstances. If it is apparent that the
investigation is a legitimate exercise of investigative authority by a
congressional committee in an area within the committee's purview, it should
be protected by Sec. 1505. While formal authorization is certainly a factor that
weighs heavily in this determination, its presence or absence is not dispositive.
To give Sec. 1505 the protective force it was intended, corrupt endeavors to
influence congressional investigations must be proscribed even when they
occur prior to formal committee authorization. 7

33

Applying these principles to the case at hand, all of the circumstances

surrounding this investigation point to the conclusion that appellants' corrupt
endeavor was directed towards a legitimate House investigation. The
investigation was instigated by the chair of a House committee that
unquestionably has jurisdiction over the subject matter of the inquiry. The letter
from Congressman Mitchell to the SBA expressly said that "[t]his Committee is
presently conducting an investigation" and referred to the Small Business Act
for its authority to do so. Furthermore, the investigation was handled by the

chief investigator of the Small Business Committee on a continuing basis for

several months. The fact that the government did not present additional proof
that the investigation had been formally authorized pursuant to the letter of the
House rules does not detract from the conclusion that this was a congressional
investigation. Accordingly, we hold that the investigation instigated by
Congressman Mitchell was an investigation by the Small Business Committee
of the House that was protected by Sec. 1505.8
III.
34

None of appellants' arguments concerning their convictions on count three for

violation of 18 U.S.C. Sec. 1343 gives us much pause. First, because we have
held that the convictions under Sec. 1505 were proper, their argument that this
conduct cannot serve as the unlawful purpose which was the focus of the wire
fraud count also must fail.

35

Second, we find equally unpersuasive their contention that the indictment did
not allege a scheme to defraud of property rights and thus, did not state a fraud
cognizable under 18 U.S.C. Sec. 1343. In McNally v. United States, 483 U.S.
350, 107 S.Ct. 2875, 2881, 97 L.Ed.2d 292 (1987), the Supreme Court held that
the mail fraud statute, 18 U.S.C. Sec. 1341, and by analogy the wire fraud
statute, is "limited in scope to the protection of property rights." Consequently,
prosecution under either statute "requires a finding that the scheme defrauded
or intended to defraud someone of money or property." United States v.
Mandel, 862 F.2d 1067, 1072 (4th Cir.1988).

36

The indictment and proof in this case certainly meet this test. The indictment
alleged that appellants schemed to defraud "Wedtech and its shareholders of
money and property by obtaining corporate funds for an unlawful purpose."
The trial court's instructions to the jury likewise required them to find beyond a
reasonable doubt that appellants had devised or intended to devise a scheme "to
defraud or to attempt to defraud, another of property rights or to obtain money
or property by means of false or fraudulent pretenses and representations."
Finally, the evidence showed that appellants received $50,000 of Wedtech's
money, under the guise of a phony retainer letter, to stop the Small Business
Committee's investigation. This is clearly a scheme punishable by the wire
fraud statute.9

37

Third, the government's proof adequately supported the conclusion that Strum's
telephone calls were made to set up the October 1, 1984, meeting which
brought the principals of the scheme together. These calls furthered the scheme
and arguably did more than any other single act in bringing the scheme to

fruition. And, after the September 25 meeting between Strum and Michael
Mitchell, it was foreseeable to Michael that Strum would use the wires to
contact him to close the deal. Thus, both he and Clarence can properly be
charged under 18 U.S.C. Sec. 1343. United States v. Toney, 598 F.2d 1349,
1355 (5th Cir.) cert. denied, 444 U.S. 1033, 100 S.Ct. 706, 62 L.Ed.2d 670
(1980).
38

As to Michael's conviction on count five, his contention that at the time Strum
made the September 25 call to Loscalzo, the kickback scheme was not yet in
existence, and consequently, the call could not have been made in its
furtherance, is equally unsupported by the evidence. Considering the fact that
there was a longtime fee-splitting relationship between Michael and Loscalzo,
the fact that Loscalzo referred Wedtech to the Mitchells, the fact that Michael
was willing to accept the referral for a substantial fee, and the fact that Michael
was made aware of Loscalzo's employment by Wedtech prior to the call in
question, the jury could have reasonably concluded that the scheme was set
into motion before the call was made and that it was foreseeable to Michael that
such a call would occur.10 The evidence presented at trial adequately supports
the conviction on count five.

IV.
39

Lastly, we turn to appellants' argument that the prosecution used its peremptory
strikes to remove black jurors in a racially discriminatory manner. In Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme
Court made clear that the prosecution in a criminal case cannot use its
peremptory challenges in jury voir dire to strike potential jurors solely on
account of their race. To ensure that such discrimination does not go
unchecked, the Court established an evidentiary scheme which allows a
defendant to establish a three part prima facie case of discrimination. First, he
must show that he is a "member of a cognizable racial group." Id. at 96, 106
S.Ct. at 1722-23. Second, the prosecutor must have used his peremptories to
strike venire members of the defendant's race. Id. Third, the defendant must
prove that these facts, plus any other relevant circumstances "raise an
inference" that the prosecutor excluded the veniremen on account of race. Id.
Once this prima facie case has been made, the burden shifts to the state to come
forward with racially-neutral explanations for the strikes. Id. If the state's
proffered reasons rebut the prima facie case, then the trial court must determine
if the defendant has proven racial discrimination without the aid of any
presumption.

40

In applying these principles to appellants' voir dire, the trial court found that

they had made their prima facie case. We agree. Appellants are black. The
prosecution used seven of its ten peremptories to strike black veniremen.
Furthermore, a previous jury panel had to be dismissed because of racially
inflammatory remarks made in the jurors' lounge. We find that under these
circumstances, a prima facie Batson violation has been made.
41

We also agree with the trial court's conclusion that the government's racially
neutral explanations for the strikes rebutted the prima facie case. The
government maintained that four of the black jurors were struck because they
resided in Congressman Mitchell's home district. Because of the Congressman's
tremendous popularity with his constituency, the prosecution felt that these
jurors would give undue weight to the Congressman's testimony on his
nephews' behalf. The government explained that the fifth black juror was struck
because he resided in the district that Michael Mitchell represented for many
years on the Baltimore City Council and because of an equivocal response that
he made when asked if he had been exposed to any pretrial publicity of the
case. The sixth juror was struck because of her strong negative reaction to the
press reports she had seen regarding the racist comments made during the first
jury voir dire. The government reasoned that she might be prejudiced against
the prosecution because of the remarks. Finally, the seventh juror was struck
because he had a criminal record.

42

Because appellants' prima facie case was rebutted, the trial court was left with
the task of determining if they had proven purposeful discrimination. It
determined that they did not. In reaching this decision as to the first five jurors,
the lower court focused on the fact of the Mitchell family's political prominence
and its remarkable popularity in the Congressman's and the brothers' home
districts. While recognizing that this reason could be pretextual because these
areas are also predominately black, the trial court assessed all of the
circumstances, including the prosecutor's credibility, and concluded that the
government's use of this criterion was legitimate. The court also found that
appellants had not shown purposeful discrimination as to the remaining two
jurors.

43

The lower court's finding on the issue of discriminatory purpose is one of fact
that we may not overturn unless it is clearly erroneous. Tindle, 860 F.2d at 129;
United States v. Hamilton, 850 F.2d 1038, 1040 (4th Cir.1988) cert. dismissed,
--- U.S. ----, 109 S.Ct. 1564, 103 L.Ed.2d 931 (1989). Besides the facial validity
of the state's racially neutral explanations for the use of its strikes, we note that
the jury eventually impaneled contained three blacks, including the foreperson.
This is supportive of the inference that the government did not act with racially
discriminatory intent especially in view of the fact that the government used

three of its peremptories to strike whites. Further, the venire of 38 jurors

contained 11 blacks (29%) while appellants' jury of 12 contained 3 blacks
(25%). While such statistics are not dispositive, they lend support to the trial
court's conclusion that no equal protection violation occurred. On this record,
we cannot say that the trial court's decision was clearly erroneous. Accordingly,
we affirm the lower court and hold that appellants' jury was not selected in
violation of Batson.
V.
44

In sum, we affirm appellants' convictions of violating 18 U.S.C. Sec. 1505

because the evidence at trial supported the jury's verdict that they corruptly
endeavored to influence a House investigation through their close relationship
with the chair of the investigating Committee. We also uphold appellants'
convictions for violating 18 U.S.C. Sec. 1343 through their participation in a
scheme to defraud Wedtech of a $50,000 fee as well as Michael Mitchell's wire
fraud conviction for his part in the kickback of one-third of the fee to a
Wedtech employee. Finally, we conclude that appellants' right to the equal
protection of law was not violated through the prosecution's use of its
peremptory strikes in jury voir dire. Accordingly, we affirm the judgment of
the lower court in all respects.

45

AFFIRMED.

The government produced no evidence that at this point, the Small Business
Committee had formally voted to authorize the investigation

Clarence Mitchell, who eventually received $10,000 of this fee, is not licensed
to practice law

We have reviewed appellants' other contentions and found them meritless.

Even if there were a problem of multiplicity in charging appellants with both
counts 1 and 2, an issue we do not decide, appellants suffered no harm because
of their acquittal on count 1. North Carolina v. Pearce, 395 U.S. 711, 717, 89
S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (double jeopardy clause protects
against double punishments). We also find no error in the district court's ruling
under Fed.R.Evid. 106 that the excerpt of Loscalzo's grand jury testimony that
appellants sought to introduce could not be introduced unless it was
accompanied by other excerpts to place it in context. United States v. Jamar,
561 F.2d 1103, 1108-09 (4th Cir.1977). Finally, because appellants failed to
make a showing of government misconduct, the prerequisite of any defense

immunity request, it was not error for the district court to deny appellants'
request to grant use immunity to Mariotta. United States v. Tindle, 808 F.2d
319, 325-26 (4th Cir.1986) (later unrelated appeal 860 F.2d 125 (4th Cir.1988)
cert. filed 57 U.S.L.W. 3590 (February 17, 1989))
4

It is clear that 18 U.S.C. Sec. 1505, 18 U.S.C. Sec. 1503 (obstruction of judicial
proceedings), and 26 U.S.C. Sec. 7212 (obstruction of administration of the tax
code) are obstruction statutes with similarly worded omnibus provisions that
are intended to serve comparable goals. Reeves, 752 F.2d at 998-1000. We
agree with our sister circuits that the identity of purpose among these
provisions makes case law interpreting any one of these provisions strongly
persuasive authority in interpreting the others. See Laurins, 857 F.2d at 536;
United States v. Martin, 747 F.2d 1404, 1409 (11th Cir.1984); Reeves, 752
F.2d at 998
This conclusion leads us to reject appellant's contention that case law
interpreting Sec. 1503 is inapposite because of the inherent differences between
the judicial and legislative branches. While we agree with the premise
underlying this position--that access to members of Congress is necessarily less
closely guarded than ex parte access to judges or jurors--we do not agree that
this renders Sec. 1503 precedents unavailing. As the trial court noted, such a
position would overlook the "numerous similarities" between legislative and
judicial fact-finding which make it analytically sound to view the two
obstruction statutes analogously.

We reject appellants' contention that such a broad interpretation of Sec. 1505

renders it unconstitutionally vague. The statute expressly prohibits corrupt
endeavors to influence congressional investigations. This language is more than
adequate to forewarn a reasonable person that any attempt to improperly
influence a congressional investigation is illegal. See United States v. Jeter, 775
F.2d 670, 677-79 (6th Cir.), cert. denied, 475 U.S. 1142, 106 S.Ct. 1796, 90
L.Ed.2d 341 (1985) (rejecting similar argument under Sec. 1503)

Appellants' lobbying theory was squarely presented to, and rejected by, the
jury. The lower court instructed:
A lobbyist is a person who in return for money or other thing of value agrees to
attempt to influence, directly or indirectly, the passage or defeat of any
legislation which may include investigations by the Congress. Lobbying is
lawful activity permitted and regulated by the Congress. A lobbyist may not,
however, endeavor corruptly to influence, obstruct or impede a Congressional
investigation.

Appellants' argument to the contrary relies on a line of authority, typified by

Gojack v. United States, 384 U.S. 702, 86 S.Ct. 1689, 16 L.Ed.2d 870 (1966),
which has strictly construed the contempt of Congress statute, 2 U.S.C. Sec.
192, to require formal authorization of a committee inquiry before a witness can
be held in contempt for refusing to answer questions posed by the committee.
We find that this reliance is misplaced. Unlike contempt statutes, obstruction of
justice statutes are uniformly given a broad construction. Further, the language
of 2 U.S.C. Sec. 192 refers specifically to inquiries, while the language of Sec.
1505 refers to obstruction of inquiries or investigations. This distinction makes
a difference. To have any meaning at all, the inclusion of this language must
evidence Congress' intent for Sec. 1505 to be of broader sweep than 2 U.S.C.
Sec. 192
8

This conclusion is supported by a common sense recognition of the nature of

this crime. Corruptly endeavoring to influence a congressional investigation is a
crime of specific intent and, where it is clear that a defendant had this requisite
intent, he should not be able to escape punishment through "empty
technicalities." United States v. Simmons, 591 F.2d 206, 208 (3rd Cir.1978)
(interpreting Sec. 1503). The evidence presented at appellant's trial
demonstrated this "specific intent" and appellants now seek to avoid the
consequences of their intentions through just such a technicality. We will not
read Sec. 1505 to countenance such a result

The fact that Wedtech's officers were fully aware of the real purpose of the
payment to appellants does not change the fact that Wedtech was defrauded of
the funds. The fraud was perpetrated on the corporation and its shareholders
not on its officers

10

We also reject Michael's argument that because the entire $50,000 was
fraudulently procured, his subsequent kickback of one-third of those funds
could not perpetuate a separate fraud. The same funds can certainly be part of
two related but separate fraudulent schemes, each punishable under 18 U.S.C.
Sec. 1343